The First Amendment has always provided a completely different
standard with regard to liability for actions that constitute speech as
compared to actions that constitute copyright infringement. They're really
just apples and oranges. And I think it would disserve both areas of law -- I
know there's been some discussion, some people have attempted to link these two
areas of law recently, and I think it does a disservice to both areas of law,
even though the same technologies may be involved. And I think it really does
a disservice both to the law of the First Amendment and the law of copyright to
attempt really to try to analogize from one to the other.

Only a copyright lawyer could think that copyright law was an
exemplary vehicle for a national or international information policy, that
copyright rules provided appropriate standards for regulating consumers' access
to and use of information, or that copyright norms supplied adequate insights
to guide our adjustment of that policy to the claims of competing interests.
Only a copyright lawyer would view it as progress if consumers agreed that
their everyday reading, viewing and listening behavior should henceforth be
conducted in rigorous compliance with the provisions of title 17 of the U.S.
Code.

Because we copyright specialists take pride in the arcane technicalities of
our specialty, we too often exclude from our policy discussions -- or fail to
take seriously -- the contributions of the vast number of interested observers
who are not copyright lawyers. We talk with each other instead, and forget to
recognize the degree to which we have come to take for granted that the terms
of our discourse are the appropriate ones. We all know that, without strong
incentives cast in the property mold, authors will lack the will to create and
publishers have no motive to disseminate the works that form the currency of
our information economy.[3] We all
agree that the copyright system's solicitude for copyright owners is an
appropriate, nay, indispensable element in its role as the engine of free
expression. We all believe that copyright's success in fostering authorship is
what made America great. Outsiders may say intemperate things, but that's
probably because they are too unsophisticated in the ways of intellectual
property to understand the intricacies of the system, and are thus unable to
appreciate its virtues.

The recent celebrity of the Internet has inspired lobbyists and policymakers
to scramble for solutions to problems both real and imagined, and has generated
an opportunity for copyright specialists to remake significant sectors of the
nation's information policy into a form predicated on extant copyright rules
and copyright norms. To a core community of copyright experts, such a change
seems good and true. The incomplete accommodation of copyright policy in our
information law until now has been a persistent problem,[4] and appropriate legislative response to the threats posed
by digital technology in general and the Internet in particular may offer a
comprehensive solution, discouraging courts from too easily privileging
substantial uses of copyrighted material in the interest of an asserted policy
favoring access.[5]

The White House Information Infrastructure Task Force issued a lengthy report
in September, 1995, prescribing specific reforms intended to ensure that
familiar copyright rules would function as "rules of the road" for the
information superhighway.[6] When
alarmed observers complained that copyright-centric proposals might impede the
progress of science and the useful arts,[7] supporters of the proposals suggested that these naysayers
were advancing misleading arguments, perhaps from sincere but ill-informed
misapprehensions,[8] or perhaps in
pursuit of other, unacknowledged agendas.[9] Proponents of the legislation have insisted that the
privilege of fair use will continue to permit appropriate uses,[10] and will thus forestall any major problems
raised by the proposals' opponents. They have resisted suggestions, however,
to extend the fair use privilege to legitimize private, educational or library
uses in the digital environment. The White House Information Infrastructure
Task Force Working Group On Intellectual Property Report's response is
exemplary:

Some participants have suggested that the United States is
being
divided into a nation of information "haves" and "have nots" and that this
could be ameliorated by ensuring that the fair use defense is broadly generous
in the NII context. The Working Group rejects the notion that copyright owners
should be taxed--apart from all others--to facilitate the legitimate goal of
"universal access."[11]

Other contributions to this symposium examine whether current copyright law is
a sensible scheme when applied to networked digital technology.[12] In this article, I argue that, whatever the outcome of
that debate, copyright doctrine is ill-adapted to accommodate many of the
important interests that inform our information policy. First Amendment,
privacy, and distributional issues that copyright has treated only glancingly
are central to any information policy. I argue further that suggestions that
fair use will resolve any important conflicts between these interests and the
proprietary claims of copyright holders are unrealistic. The advantage of
remaking our information policy on the model of our copyright law is that it
will greatly enhance the value of copyright lawyers' expertise. As gratifying
as that attainment might be, it seems insufficient to be worth saddling our
citizens with the deformed information policy likely to result from it.[13]

Part I of this article argues that the copyright proposals currently under
consideration appear likely to supplant important elements of our information
law for communications over digital networks. Part II examines the
longstanding axiom that copyright law and First Amendment law complement each
other, rather than conflict. I suggest that the most important reasons for the
compatibility between copyright and free expression law lie not in copyright's
incentive structure, as is commonly asserted, but rather in legal and practical
limitations on the scope of exclusive copyright rights. In Part III, I examine
the effects that technological progress and the proposed copyright improvements
are likely to have on those limitations. I conclude that, in the digital age,
those legal and practical restrictions may no longer ensure the meaningful
public access to ideas, facts, and other unprotected content that is the
predicate for the asserted harmony between copyright law and the First
Amendment. In part IV, I examine copyright's hospitality to elements of our
information policy other than First Amendment concerns, and find it ill-suited
to accommodate them. Copyright's asserted solicitude for privacy, for example,
turns out to be largely illusory, especially in the context of the Internet.
Copyright's approach to distributional issues has long been to leave them to
the marketplace. Copyright, in short, is too limited a prism through which to
focus the many conflicting interests that make up our information law.

I. Information Policy

American information policy is an elaborate mixture of competing and sometimes
contradictory imperatives. The architectural core is supplied by the First
Amendment, but different First Amendment norms and models operate in tension
with each other.[14] In addition (and
sometimes in opposition) to First Amendment values, our information policy
incorporates concerns ranging from protecting children[15] to vindicating injured reputations,[16] defending individual privacy,[17] preserving the value of business property,[18] preventing misleading advertisements,[19] ensuring the fairness of elections,[20] and guarding our national security.[21] The balance among all these policies is at best
delicate, because the law seeks to reconcile irreconcilable things.[22] Intellectual property laws have, until now,
been a minor blip on the information policy radar screen. Occasional cranky
commentators have suggested that copyright and the First Amendment cannot
easily be harmonized,[23] but the usual way of
looking at it insists that

[i]n our haste to disseminate news, it should not be forgotten that the
Framers intended copyright itself to be the engine of free expression. By
establishing a marketable right to the use of one's expression, copyright
supplies the economic incentive to create and disseminate ideas[24].

It seems at first fanciful to suggest that any serious effort is afoot to
refashion our information policy to give primacy to intellectual property laws.
Yet, the proposals emanating from the White House Information Infrastructure
Task Force seem to have that goal. The President's Task Force was charged to
come up with "comprehensive telecommunications and information policies aimed
at articulating and implementing the Administration's vision for the NII."[25] It set up working groups on a variety of
topics.[26] The various working groups --
save one -- seem to have issued documents suggesting, in essence, that there is
no need for precipitous government action. Thus, the Task Force's ultimate
position on privacy is that privacy is a good thing, and proprietors of
databases collecting private information should be reminded that members of the
public prefer respect for privacy over the alternative.[27] The Task Force's ultimate position on technical
standards appears to be that interoperability is good, and private industry,
acting in accord with private firms' business plans, may choose to adopt
interoperable technology to some degree.[28]
Most documents emanating from the IITF have cautioned against undue haste,
suggesting that the value of permitting the private sector to thrash things
out and work towards consensus could not be overemphasized.

The White Paper Report of the Working Group on Intellectual Property,[29] in contrast, made specific, highly
controversial recommendations,[30] and
proposed that Congress act on them immediately rather than wait around for
interested groups to engage in debate. Commissioner Lehman[31] agreed to encourage private meetings to facilitate
compromise on difficult issues,[32] but
insisted that Congress should enact the proposed legislative package without
delay rather than waiting for agreement to emerge from those meetings. When
pitched opposition to central elements of the legislation blocked immediate
enactment,[33] the Commissioner pursued what
he termed a "second bite of the apple."[34]
He persuaded U.S. negotiators to make the substance of the provisions that
Lehman had been unable to shepherd through Congress the centerpiece of U.S.
proposals for a new international instrument.[35]

The probable impact of those proposals has been intemperently disputed in a
variety of fora.[36] I'm not sure it is
possible, any longer, to characterize them in a neutral manner. I read the
White Paper to paint a picture of a rosy future in which copyright owners
would not be "taxed . . . to facilitate the legitimate goal of universal
access",[37] in which the owners of particular
copies of works could not transmit a copy to another person without
authorization,[38] where "someone who believes
that all works should be free in Cyberspace" would be criminally liable if
that belief inspired him to make and distribute copies of protected works,[39] and where "technological means of tracking
transactions and licensing will lead to reduced application and scope of the
fair use doctrine."[40] That vision has
garnered impressive, although not universal, support from copyright lawyers[41] and many of their clients,[42] and has inspired impressive, although not universal,
opposition from library organizations,[43]
civil liberties groups,[44] educators[45] and computer scientists.[46] Copyright specialists debating this future have been
lured into a particularly acrimonious debate, sprinkled with accusations on all
sides of bad faith and inept analysis. Because of the rancor, suggestions
taking the form that these decisions need to be made well, rather than
quickly,[47] or that more interests need to be
represented in the debate,[48] are perceived
as code phrases, disguising unreasoned and implacable opposition; that may be
the reason that the most prominent supporter of the agenda has been drawn into
making particularly unfortunate analogies to military action in Iran or
Bosnia.[49]

Perhaps the bitterest aspect of the debate is the hair-pulling contest over
which side has the better of the argument that its version of traditional
copyright law is the true one.[50] That
dispute, I suspect, is incapable of resolution. Although some of the
characterizations of established copyright doctrine have surely been more
fanciful than others,[51] there's enough law
out there to support a wide variety of stories about the nature of copyright
law's essential balance.[52] There are a
number of politically expedient reasons why opposing parties would claim to be
the heir of copyright's past,[53] but we
really ought not to take that class of arguments too seriously. Without
regard to who has the more legitimate claim to the mantle of long copyright
tradition, we ought to be evaluating the proposals on the table from vantage
points other than that one. If the best that can be said of a plan is that it
accords with the policies that appealed to the Congress of 1790, the plan seems
to me to be ripe for reevaluation.

It is difficult to characterize the probable impact of the White Paper's
proposals, however, without some baseline with which to compare it. Let me try
to sketch out such a baseline with the hope that it is essentially
uncontroversial: First, copyright has never given copyright owners control
over all uses of their works. Some uses are within the ambit of the copyright
owner's exclusive rights, while others are beyond them. Thus, the current
statute gives copyright owners control over most public performances but not
over private performances,[54] over the
creation of fixed reproductions but not the creation of ephemeral
reproductions,[55] over the first distribution
of a particular authorized copy but not over most subsequent distributions of
that copy.[56] There is nothing graven in
stone about this divide; earlier statutes parsed it differently. As
originally enacted, for example, the 1909 statute gave the owners of copyright
in plays a public performance right, but gave no comparable right to the owners
of copyright in stories or lectures, and recognized no public display right
whatsoever.[57] Nonetheless, all copyright
statutes since the Statute of Anne[58] have
reserved some uses of copyright-protected works to the copyright holder, and
left others to members of the public. The current debate has expended many
gallons of hot air over the legitimacy of ripping control over particular uses
from the copyright owner's bosom on the one hand[59] (as if God herself had consigned all possible uses to the
copyright owner's particular control), or removing long-held use rights from
members of the public[60] (as if the 10th
commandment really read "Thou shalt not pay for reading"). Discussions may be
more civil if we can agree that who controls what uses of what works and when
are questions with many possible answers, none of them required by love for God
and Country.

Different distributions of control over works will, of course, advance
different goals more or less expediently. Although we seem to be unable to
generate the empirical data to prove it, many of us believe as an article of
faith that copyright, at least sometimes, acts as an incentive that encourages
the creation and dissemination of more works to a wider audience than would be
the case without it. Although we've never tried to quantify it, we seem to
agree that some authorship would transpire in the absence of any copyright
incentive;[61] most of us believe that at
least some of it would be of high quality.[62]
Absent idiosyncratic market failures,[63]
moreover, most of us assume that the more expansive the rights held by the
copyright owner, the more money the copyright owner will be able to realize
from exploiting a particular work, and the more restricted the rights held by
the copyright owner, the more people will be able to read, see, listen to, or
use a particular work.[64] Finally, most of
us agree that both enabling copyright owners to earn money from exploiting
works and enabling members of the public to gain broad access to extant works
are independent goods, most of us agree that at some point those two goods can
come into conflict, and most of us agree that some adjustment in both may
sometimes be appropriate to enable us to achieve a desirable balance between
them.[65]

With that as my baseline, I want to go back to being controversial. The
proposals advanced in the White Paper, and embodied in legislation introduced
in Congress[66] and in the draft treaty
language advanced by the United States for adoption by members of the World
Intellectual Property Organization,[67]
enhance copyright owners' control over access to their works and use of the
contents. In ways that I will detail in the next section of the article, the
new possibilities served up by digital technology and the increased control for
copyright owners promised by the bills (and echoed in the treaty proposals) add
up to something more than the sum of their parts. The proposals offer
comprehensive answers to many of the questions at the core of our information
policy: who is entitled to access to information moving through the global
information infrastructure, and on what terms; who is entitled to set limits on
the uses to which individuals will put the ideas and information that they see
or hear; what sorts of information may be appropriated from the public domain
by private actors; what sorts of penalties might be levied for failing to treat
that information in the way its claimants direct; whether subsidized access to
any material is appropriate for users who are students, or disabled, or poor;
what sorts of restrictions proprietors may place on the dissemination of
content; who is entitled to claim a cognizable interest in preventing that
dissemination or in preventing the sale of devices or services that seek to get
around proprietary restrictions; what sort of actions should subject what sort
of actors to liability for reading, or being the conduit of, information that
proprietors attempt to restrict.

The risk that copyright rules will, by supplying copyright answers to all of
these questions, swallow up much of our information law has not escaped
notice.[68] A number of authors have
suggested that copyright law itself must be reformulated to incorporate the
political value judgments that inform democratic information policy.[69] Supporters of the proposals argue that,
just as strong copyright laws have led to burgeoning free expression in the
past, enhancing the strength of copyright protection can only enhance the
vitality of free expression in the digital age.[70] For that reason, they argue, it would be a mistake to
accept the arguments of libraries, schools, Internet and online service
providers, hardware and software manufacturers, and others, that the answers
that copyright rules give to these questions devote insufficient attention to
important societal goals and can not simply be transplanted to digital media
without consideration of other, competing policies.[71]

Even if there were no dispute that augmented copyright protection would enrich
our marketplace of ideas, the argument that therefore other policy
considerations should not displace copyright principles would deserve to be
considered on its merits. But, the inference that strong copyright advances
First Amendment values turns out to be based on some hidden assumptions that
may not prove true in the digital age -- at least not if the proposed digital
agenda is adopted.

II. Copyright as the engine of free expression

Harper and Row v. Nation Enterprises[72] represents the Supreme Court's most careful consideration
of a claim that the First Amendment imposed implicit limitations on liability
for copyright infringement. Not so, ruled the Court. The First Amendment
protections already embodied in copyright doctrine suffice; no further
limitations are needed.[73] Most importantly,
the copyright law's distinction between ideas and expression "strikes a
definitional balance between the First Amendment and the Copyright Act": it
permits free communication of facts and ideas while protecting an author's
expression. "No author may copyright his ideas or the facts he narrates."[74] Since copyright leaves facts, ideas,
systems, processes, methods of operation, principles and discoveries wholly
unprotected, it leaves others free to communicate the ideas embodied in
protected works, so long as they do not appropriate the form in which those
ideas were expressed. There is thus no collision between freedom of expression
and copyright's exclusive rights.

Implicit in this analysis is that copyright prohibits replication and
redistribution of copyrighted works; it does not speak, except indirectly, to
consumption.[75] One can communicate the
ideas and facts embodied in a work without replicating their form, but only if
one has read them, seen them or heard them. While copyright law does nothing
to guarantee a particular individual access to a particular work whose owner
declines to disseminate it, it does impose significant restrictions on
copyright holders' control over access.

One such restriction is the first sale doctrine, which permits the owner of an
authorized copy to dispose of it without bothering to secure the copyright
owner's consent. The copyright owner can authorize the first distribution of a
particular copy or phonorecord to the public, but the recipient of that copy is
entitled to reuse it, resell it, loan it, display it, or give it away.[76] Copies of most copyrighted works may be
rented, for profit, again and again, without the copyright holder's consent.[77] All of these uses could generate revenue
for copyright owners were they entitled to demand it, although that revenue
would come at a significant reduction in access for consumers who are unable or
unwilling to buy it at the market price for new copies. Despite repeated
efforts to nibble away at the first sale doctrine, however, Congress has thus
far been willing to narrow it only when persuaded that commercial rental will
facilitate widespread illegal copying, and only so far as required to meet that
particular threat.[78]

An analogous limitation confines copyright owners' performance and display
rights to performances and displays that are public. Copyright owners are
entitled to control the public broadcast of their works, but have no direct
right to prohibit their private reception. If NBC beams an episode of Star
Trek into my living room without Paramount's permission, it has violated
section 106. Even so, by watching the pirated episode, I do nothing illegal.

The upshot of these limits is that while consumers can't claim affirmative
rights to secure access to copyrighted material, copyright owners are not
entitled to control consumers' receiving, reading, viewing, listening to and
using their works except by proxy: they need to exercise their control at the
reproduction, distribution, and public dissemination level.

One might draw from these limitations the kernel of a public access
entitlement to at least such works as have been publicly exploited.[79] I won't do that, though. I want to use
these restrictions to make a far less problematic argument: a large part of
the reason that there has seemed (until recently) to be little risk of an
important collision between copyright law's exclusive rights and First
Amendment values is that these limitations have preserved the public's access
to the ideas, facts, concepts, systems, processes and methods, which, although
embodied in protected works, belong from the moment of their creation to the
public domain. That robust access to the public domain has made copyright's
potential encroachment upon freedom of expression seem incidental.

Moreover, these legal restrictions have, until recently, been enhanced by
technological limitations on the control that could be exercised over copies of
works once those copies leave their distributors' hands. Until very recently,
a copyright holder had no means to instruct a book that it should sprout wings
and fly back to its publisher after it had been read N times, crumble
into unusability on a date certain, or reveal only indecipherable script until
a designated reader shouted "Open sesame!" In the absence of effective
enforcement mechanisms, copyright holders have not yet engaged in widespread
attempts to annul the legal copyright limits by investing in strategies that
purport to contract around them.[80] Thus, a
combination of legal and practical constraints on copyright owners' control
over access to the contents of their works has buttressed the perception that
copyright does not pose a significant threat to freedom of expression.

As it happens, technology has marched us on to a place where that access
suddenly seems less robust, because important practical limitations on the
copyright owners' bundles of rights seem easily invented around. At the same
time, some of the proposals emanating from the Information Infrastructure Task
Force Working Group on Intellectual Property profoundly threaten the legal
limitations on the copyright owners' bundle of rights.[81] One might claim on that basis that the Working Group's
proposals, if enacted in their current form, would be defenseless in the face
of a serious constitutional challenge.[82] I
won't do that either. (Or, in any event, I won't do it now, or here.)[83] If the reasons that copyright has
functioned so well as the engine of free expression are as much due to the
breadth of its limitations as to its incentive structure, however, then its
continued effectiveness if these limitations are significantly weakened is
called into doubt. If copyright -- the newfangled, digital version, that is
--indeed raises conflicts with important values embodied in our information
policy, we will need to decide how to proceed. Our information law
incorporates a variety of policies that we would not lightly give up, and
copyright law is completely unsuited to accommodate them.

III. Leaving eye tracks

A. The idea/expression distinction, merger, and digital technology

A fundamental premise of the copyright system is that it is possible to
protect expression from copying while privileging the copying of all ideas (and
any procedures, processes, systems, methods of operation, concepts, principles
or discoveries) therein expressed.[84] Ideas (etc.), no matter how creative, are deemed to
belong to the public domain from their inception, and to be immune from
copyright protection. The law recognizes in the doctrine of merger that it
will sometimes be nearly impossible to separate protected expression from
unprotected idea (etc.), and resolves that dilemma by permitting the copying of
expression whenever genuinely necessary in order to copy the unprotected ideas
(etc.),[85] but merger is meant to
cover the unusual case.

The extension of copyright to computer programs has required us to begin to
recognize that, in a world dominated by digital technology, the unusual case is
no longer so unusual. Courts have engaged in baroque mental gymnastics to
devise workable tests to pare unprotected idea from protected expression in
digital works.[86] The fundamental
distinction between protectible expression and unprotectible idea, procedure,
process, system, method of operation, concept, principle or discovery has
turned out to be essentially illusory when applied to computer programs.
Straightforward application of the merger doctrine would require courts to
accord computer programs either far too little protection or far too much of
it.[87] If one cannot reproduce any
of the ideas in the work without reproducing all of its expression, the
idea/expression distinction and the merger doctrine would appear to permit the
reproduction.[88] There seems to be
no obvious ways to protect the expression without giving de facto protection to
ideas.[89]

Until recently, the particular merger problems posed by computer programs
seemed sui generis. Recent interpretations of the copyright law expanding the
scope of the exclusive right to reproduce a work in copies to encompass any
appearance in ephemeral computer memory,[90] however, threaten to extend these problems to works of
all sorts as soon as they are encapsulated digitally. The IITF Working Group
Report endorses these constructions as indisputably correct.[91] Increasingly, works of all sorts are being
created and disseminated in digital form. If reading or viewing these works
violates the reproduction right, then we need to be concerned about preserving
the free access to ideas and other unprotected material that lies at the heart
of our copyright system. I didn't find much in the Working Group Report
directed towards ensuring that free access, but I did see a recommendation to
facilitate electronic copy protection of material by prohibiting members of the
public from hacking around copy protection systems.[92] The language proposed by the United States for the WIPO
Treaty went further. It defined the copyright holder's control over
reproductions to include ". . . direct and indirect reproduction of their
works, whether permanent or temporary, in any manner or form," and limited the
permissible exceptions to "cases where a temporary reproduction has the sole
purpose of making the work perceptible or where the reproduction is of a
transient or incidental nature, provided that such reproduction takes place in
the course of use of the work that is authorized by the author or permitted by
law."[93] The proposed treaty draft
further required signatory countries to prohibit "importation, manufacture or
distribution of protection-defeating devices, or the offer or performance of
any service having the same effect."[94] Nothing in the implementing legislation, or the
proposed WIPO treaty provisions, incorporated express exceptions to privilege
unauthorized access to ideas and other uncopyrighted material.[95] Indeed, the most enthusiastic supporters of
these additional measures of protection appeared to envision a brave new world
in which "unauthorized access to information and content [w]ould be a
crime."[96]

The idea/expression distinction permits copyright to act as the engine of free
expression, by ensuring that facts and ideas can circulate freely while
permitting copyright owners to earn economic advantage by controlling
distribution of the particular expressive envelope that contains those facts
and ideas. So long as one can separate the contents from their envelopes, and
take one while leaving the other, copyright can promote learning and
communication. We have, accordingly, made choices about what sort of treatment
of the envelopes needs to be beyond the scope of the copyright owners' control
in order to promote the free exchange of ideas contained within them. Two
obvious limitations that enhance access are the first sale doctrine and the
relatively stingy boundaries confining the copyright owners' performance and
display rights. Another, more fundamental one has been that the reproduction
right has not been thought to extend to mere consumption. Leaving eye-tracks
on a text has not hitherto been actionable.

Once we insist, however, that the reproduction right extends not only to
replication but to consumption, there is no way to guard the expression from
copying while ensuring access to the ideas it expresses. In order to gain
access to the unprotected material embodied in digital form, we must use a
machine to translate the material into human-readable form by reading it into
volatile computer memory. The copy is ephemeral, but could be fixed at any
time (and, depending on the computers and software used, may be fixed in a disk
cache in any event). The current prevailing interpretation of the scope of the
reproduction right tells us that we invade the copyright owners' reproduction
rights when we use a computer to read such a text without
authorization.[97] Professor James
Boyle articulates the problem this way:

Copyright marks the attempt to achieve for texts and other works,
a kind of balance in which the assumption of the system is that widespread
use is possible without copying. The relative bundles of rights of the user
and the owner are set based on a set of economic and technical assumptions
about the meaning of normal use. It is possible for someone to do a great deal
with a book without copying it -- she can borrow it from a library, browse it
in a bookstore, purchase it, lend it, quote aloud from it, re-sell it; the
relatively expansive rights of the copyright holder are thus confined in
practice to those occasions and uses for which copying would be necessary. But
on the Net transmission means the generation of lots of temporary,
unstable copies. That's what transmission is. Thus if one labels each
of these temporary and evanescent copies as copies for the purposes of
copyright, one has dramatically shifted the balance of power from users and
future creators, to current rights holders, and done so solely on the basis of
a technological accident.[98]

If the law requires that we obtain a license whenever we wish to read protected
text and thus discover the ideas it expresses (so that we can express these
ideas in our own, different, form), it encourages copyright owners to restrict
the availability of licenses whenever it makes economic sense for them to do
so. That, in turn, makes access to the ideas (etc.) contingent on copyright
holders' marketing plans, and threatens to limit the supply of competing works
expressing or debunking those ideas. If we are truly determined to permit
future authors to view protected works in order to learn the ideas therein
expressed, we might invoke the merger doctrine to deny protection to the work
in its entirety. (Fat chance.) Or, perhaps, these all too common situations
will be among the instances that will fall within the privilege of fair use.[99] More on fair use later.

B. Newfangled enforcement possibilities

It has become commonplace to assert that the Internet has made widespread
catastrophic piracy of protected works far easier than ever before. For
whatever reason, few people seem to be trumpeting the ways that the Internet
has made it simpler to prevent, detect and avenge unauthorized copying.[100] Finding unauthorized copies on the
Internet is incomparably easier than finding them in the workplace, in people's
homes, or even in stores.[101] A copyright
proprietor can run periodic global searches for distinctive character strings
to find illicit copies on the World Wide Web, and those searches are nearly
cost-free. Infringement, once detected, is far easier to prove, since the
ephemeral copies involved in the unauthorized transmission of protected
material leave incriminating electron trails. Finally, illicit copying of
digital material is not especially easy to disguise. Perhaps those are some
of the reasons that the Software Publishers Association recently announced a
number of civil lawsuits filed against penny-ante individual copyright
infringers and the Internet service providers that carry their subscriptions.[102] The pressure against service providers,
moreover, persuaded at least some of them to act as copyright police on the
SPA's behalf.[103] Meanwhile, research into
methods of electronic copy protection that will prevent unauthorized
access to works (rather than merely prohibiting it) continues. It is too
early, of course, to have a handle on whether the additional ease of enforcing
copyrights will eclipse or be eclipsed by the increased ease with which
unauthorized copies can be made and distributed. We should not assume too
easily, however, that radical constriction in public access to ideas and
information is a regrettable but necessary response to infringers' new
technological advantage. It seems likely that if we don't pay careful
attention, we will narrow public access to the public domain at precisely the
time that technological advances enable copyright owners to protect their
rights more effectively than ever before.

C. Exhaustion in Cyberspace

An expansively interpreted reproduction right poses significant threats to an
information policy that has been based primarily on unfettered exchange of
ideas. Supporters of this agenda, however, have insisted that this generous
construction of a copyright owner's control would come into play only with
respect to unauthorized uses of works. "[N]ot all transmissions will involve
copyrighted works, or works that a copyright owner chooses to protect,"
explains one organization in support of the legislation. "In the case of
e-mail, many use the Internet as a way to communicate ideas and to share
information. There is nothing in the legislation that prevents users from
doing so, as long as they don't violate the property rights of others."[104] That particular formulation is
ambiguous. The "property rights of others" could be interpreted to cover a
wide range of uses currently believed to be beyond the copyright owner's reach.
It is unsurprising, then, that skeptics might seek assurance that the analogues
of uses that are uncontroversially legal today would remain legal for works
embodied in digital form. The Working Group's response to such queries has
been less than confidence-inspiring. Its initial position seemed to be that
copyright owners should be able to control uses over digital networks that were
beyond their control in analog media, and that the copyright statute should be
amended to ensure that.[105] After heated
criticism of a knee-jerk bias favoring aggrandizement of owner interests, the
Working Group retreated to its fall-back position that the copyright law,
without amendment, uncontroversially secured to copyright owners control over
digital uses that were beyond their control in the analog world.[106]

When the draft Working Group Report came out with a recommendation that the
first sale doctrine should be modified to ensure that it did not apply to
transmissions,[107] for example, the
suggestion drew widespread expressions of dismay. In the final White Paper
Report, therefore, the Working Group replaced the proposal to amend section 109
with a discussion explaining that no amendment was required to clarify that
section 109, as currently written, did not apply to transmissions.[108] A variety of interests have proposed
amendments that would fashion an analogous exhaustion right for cyberspace that
might preserve the secondary market in access to copyrighted works that the
first sale doctrine has enabled.[109]
Those proposals don't seem to have been taken very seriously by any interests
other than the ones making the proposals. That suggests that the prognosis for
their enactment is poor.

Earlier, I discussed why the idea/expression distinction (which has gotten all
the credit for forestalling a collision between copyright and the First
Amendment) may not, without significant reformulation, be up to the task of
ensuring ready access to facts and ideas embodied in digital works. The first
sale doctrine is another limitation in the copyright act that has promoted low
cost access to the contents of copyrighted works. It seems, at least under
the IITF's proposed formulation, to have no application to works transmitted
over the Internet. The trends, here, would make anyone but a copyright lawyer
uncomfortable. Let's keep going.

D. More expansive propensities

I mentioned another limitation earlier: the restriction of the performance
and display rights, under the current copyright statute, to public performances
and displays.[110] If I watch an
unauthorized broadcast of Star Trek XLV (or use my VCR to view an
unauthorized copy of the Star Trek XLV videotape) on the television in
my living room, I am not infringing Paramount's copyright because my
performance is a private one. One might expect an analogous result if I used
my World Wide Web browser to view an unauthorized and infringing Star
Trek fan page. Under the White Paper's analysis, however, I infringe
Paramount's copyright by looking at the page, because my computer makes a copy
of it in RAM memory in order to permit me to see it. In addition, the proposed
legislation would add a provision securing to the copyright owner an exclusive
right to distribute copies or phonorecords to the public by transmission.[111] Since it is completely unclear whether
the person who ought properly to be said to be committing the distribution by
transmission is the creator of the web page, the creator's service provider,
me, my service provider, or all of the above,[112] we might all be liable for the distribution. Further,
while the line between private and public performances and displays is defined
in the current statute to ensure that a significant realm of performances and
displays remains private, no comparable definition appears for public
distribution,[113] and the judge-made law on
the question is unhelpful.[114] The bottom
line: whether we characterize the change as a closed loophole, a new right, or
an additional incident of liability, viewing a transmission from the privacy of
one's home is not infringing if one is relying on analog technology, but
becomes infringing if one uses digital technology.[115]

I've already opened myself up to a charge that I'm piling on, but I want to
mention, briefly, one additional piece of the digital intellectual property
agenda, being pursued simultaneously in Congress and Geneva. Copyright doesn't
protect facts. The Supreme Court tells us that it never has; the Constitution
forbids it.[116] With Commissioner Lehman's
support, the United States has been pursuing a treaty[117] that would oblige us to offer un-copyright protection
to the contents of databases, broadly defined, and Congressman Moorhead
introduced a bill to enact such protection in in 104th Congress.[118] The sui generis protection is
un-copyright-like both in the sense that it protects material that copyright
deems unprotectable, and in the sense that it appears to be subject to none of
the restrictions, limitations and privileges that copyright incorporates.[119] If copyright's non-protection of facts
is central in any analysis of copyright/First Amendment harmony -- and language
in U.S. Supreme Court cases suggests that it is[120] -- the proposed database protection should make even
copyright lawyers uneasy.

E. The ubiquity of the Internet

What makes this all the more
disturbing is the non-trivial possibility that today's Internet is even now
evolving into the dominant communications medium of the developed world. In an
astonishingly brief time, it has become a viable substitute for the telephone,
the telegram, the fax, the newspaper, and magazine.[121] Electronic mail has become so popular that we have
needed a new term to describe what used to go by the simple name of "mail" and
is now termed, variously, surface mail, U.S. Postal Service mail, and "snail
mail." We don't yet have Internet television (although I am not at all sure
that we won't by the time this symposium is printed),[122] but we do have World Wide Web bookstores, record
stores, mail order catalogs, and travel agents. Usenet news has for a number
of years now offered us the virtual equivalent of the town square. There are
also some early indications that the Internet could be a particularly effective
medium for the sort of political discourse that First Amendment jurisprudence
tells us is central to our democratic system.[123] (It remains to be seen whether that characteristic can
scale up.) So, when we talk about making the current copyright rules the rules
of the road for the information superhighway, we really may be talking about
using these rules to govern the next century's analogues of the telephone,
telegram, fax, newspaper, mail, magazine, television, bookstore, record store,
mail order catalog, travel agent, and town square.[124] Our current copyright rules simply weren't designed to
do that.

F. Fair use and the First Amendment

Isn't this analysis just a tad
hysterical? None of the proposals for domestic legislation have included any
amendment to the statutory privilege of fair use, after all, which will
continue to be available to privilege otherwise unlawful uses in appropriate
cases.[125] None of the proposed treaty
language on WIPO's agenda would have repealed the article of the Berne
Convention that permits signatory nations to allow unauthorized reproduction
"in certain special cases, provided that such reproduction does not conflict
with the normal exploitation of the work and does not unreasonably prejudice
the legitimate interests of the author."[126] Won't fair use simply expand to fill the gaps left by
the shrinking idea/expression distinction, the disappearing first sale
doctrine, and the growing irrelevance of traditional limitations on the scope
of the copyright owners' bundle of rights?

For a variety of reasons, that scenario seems unlikely. Those who nominate
fair use as the surviving savior of information-have-nots-seeking-free-access
have been careful to remind their audiences that fair use is a limited
privilege that applies in particular cases only after searching, fact-specific
inquiry.[127] Barbara Munder, testifying
before Congress on behalf of the Information Industry Association, put it this
way:

No one -- least of all those of us in the business of providing information
-- wants our society to devolve into segmented classes of information "haves"
and "have-nots." However, ensuring that those who cannot afford to pay for
information nevertheless have access to it is a broader societal
responsibility, not one that should be borne primarily -- let alone exclusively
-- by copyright owners.

In IIA's view, the current, vociferous push toward expanding fair use
is little more than an attempt to create a new set of "user rights" that would
place the burden of facilitating universal access to information resources
solely on the shoulders of copyright owners. The fair use doctrine was never
designed to carry this burden.[128]

Fair use is a popular privilege. Everyone agrees that fair use strikes the
appropriate balance between lawful unauthorized use and unlawful appropriation.
They disagree sharply, however, on where that balance point lies.[129] The Supreme Court tells us that "[t]he
task [of determining whether a use is fair] is not to be simplified with
bright-line rules, for the statute, like the doctrine it recognizes, calls for
case-by-case analysis."[130] The invitation
for particularized examination gives fair use its flexibility, and permits it
to seem to be all things to all people. Cases that appear to come out the
right way are rightly decided; cases that seem to have gone astray can be
minimized or ignored on the ground that the particular facts in the case led
the court to some unfortunate, over-broad language that surely won't govern the
next case to arise on similar facts. Fair use is an exceedingly subtle
doctrine, the argument goes, so it's no wonder that the courts sometimes get it
wrong.

Precisely because it requires case-by-case analysis, however, fair use is a
troublesome safe harbor for First Amendment rights. This is not the place for
a refresher course on First Amendment case law, but courts have articulated
general principles that guide them in defining when, how and why the government
can regulate protected expression.[131]
Fair use is problematic from the standpoint of most of them. Standard First
Amendment jurisprudence, for example, teaches that the government should not
discriminate among speakers or speeches on the basis of content.[132] A fair use determination may well
require a court to consider issues of content and style, and assess the merit
of both the speaker and the message. Black-letter First Amendment law insists
that government discretion over protected expression should be bounded by
neutral, mechanical, and objective criteria.[133] Judicial discretion under section 107, however, is not
significantly constrained: the exercise of discretion, after all, is the
point of a fair use inquiry. Classic free speech thinking reminds us
that in evaluating laws under the First Amendment, we need to consider the
likelihood that particular rules will prompt self-censorship.[134] The potential chilling effect of having to go through
hundreds of thousands of dollars in attorneys' fees in order to prevail after a
trial on the merits can be substantial. It may be that we could design a
fair-use-like privilege that provided would-be fair users with reasonable
certainty, was indifferent to content, and relied on hard-edged, clear rules,
mechanically applied. Once we were done, though, the privilege wouldn't be
very fair-use-like.[135]

Supporters of the proposed legislation insist that fair use will remain
unaffected by it. Those statements, though, should not be taken as assurances
that uses now perceived to be beyond the copyright owners' control will remain
so in cyberspace. On the contrary, they seem to reflect an intention to
explore just how many additional uses can be brought within the copyright
owners' control, and a resistance to adding any blanket exceptions or
privileges for any users or uses.[136] I
don't mean to paint this as nefarious; it is what copyright counsel is retained
to achieve. I simply want to argue that its ambitions are necessarily limited.
Copyright lawyers are understandably seeking rules that will give their
copyright clients copyright advantages. Nothing wrong with that; but it is a
far cry from the basis for a global information policy.

So long as we are confident that other limitations on copyright owners'
rights will ensure the public's access to the ideas, facts, concepts, systems,
processes, methods and other uncopyrightable material expressed in protected
works, fair use serves us well enough as a backup. If we insist on relying on
fair use to do more than that, we must either resign ourselves to transforming
it into something it currently is not, or accept that it is going to do a
terrible job.

IV. Beyond the First Amendment

Information policy is complicated. It needs to take account of a host of
competing concerns.[137] Copyright is
simple in comparison. The actual rules on the books may be unworkably
technical and arcane, but the reason for that is that our system has encouraged
affected parties to craft the rules among themselves and to specify particulars
according to their individual needs.[138]
All of the rules are directed towards balancing the claims of copyright owners,
authors, and users, to ensure that authors have opportunities to create and the
public has opportunities to learn from their creations. United States
information law begins with the First Amendment, but incorporates a wide range
of potentially conflicting policies to respond to a broader array of concerns.
In the previous section, I discussed why copyright law's harmony with freedom
of speech law owes more to the limits on copyright owners' control over access
to their works than to any inherent congruence between the two bodies of law.
I suggested that, if copyright's limitations cease to ensure meaningful public
access to uncopyrightable facts and ideas, procedures, processes, systems,
methods of operation, concepts, principles, or discoveries, a significant
collision between copyright and the First Amendment seems certain to follow. I
concluded, finally, that fair use would be in inadequate steam valve for free
expression.

As unready as copyright law may be to respond to First Amendment concerns, it
is even less well-adapted to accommodate other strands in our information
policy skein. Copyright has nothing to say about the protection of children or
the defense of our national security. What it has to say about the fairness of
elections seems to be limited to whether, e.g., the owner of the copyright in
"Soul Man" can prevent Bob Dole from using "I'm a Dole Man" as his campaign
anthem.[139] U.S. copyright law speaks to
injured reputations only when the victims are authors of works of visual art,[140] and does that not very well.[141] A copyright-centric view of the world
might counsel that those other concerns are subsidiary ones, unimportant when
compared with the integrity of intellectual property. Not everyone would
endorse that view. The clearest illustration of copyright's inadequacy as a
blueprint for our information policy arises when we examine the issues
surrounding privacy and the Internet.

A. Copyright and privacy

Privacy is a hot-button issue.[142] Many
people go ballistic when they learn that a variety of commercial concerns are
collecting, compiling and selling identifying information about them.
Lexis/Nexis ran into a storm of protest when it publicized its not-very-unusual
P-Trak database.[143] Notwithstanding the
importance many people assign to matters of privacy, however, the area is only
lightly regulated. There is no comprehensive federal privacy law and most
state privacy enactments treat very narrow privacy-related issues.[144]

Online communications are far from private.[145] Although people have been talking for some time about
a National Information Infrastructure that would dole out access to electronic
documents in return for small credit card payments or electronic money,[146] the dominant form of transaction
occurring over today's World Wide Web seems to be information barter. I get to
look at the New York Times on the Web;147 in return, the
Times gets to look at me looking at it, and gets to put a cookie[148] on my hard disk that it can check for
next time I come back.[149] To my
knowledge, there is no rule in any U.S. jurisdiction that requires the
Times to let me know that it is doing this, or what it is doing it for.
The Web browser I use graciously permits me to adjust it to let me know before
a cookie is set, and even refuse to accept one. (The Times responds by
refusing to let me look at its electronic page.[150] ) If there are any settings that would allow me to see
and affect what information the sites I visit collect about me as I breeze by,
I haven't found them.

Most people appear not to know this; they appear to assume that viewing stuff
through computer screens in the privacy of their homes is as secure as viewing
stuff on their television screens in the privacy of their homes -- at least, if
they don't e-mail their credit card numbers. Proprietors of mailing lists and
other commercially valuable data have sometimes argued that people don't mind
when their personal identifying information is collected and sold -- that, in
fact, they positively relish getting all those offers of low-annual-fee credit
cards in the mail.[151] They nonetheless
have resisted calls to emulate European privacy protection rules[152] or to require subjects to give permission
to have their data collected and sold.[153]
They have, moreover, made it fiendishly difficult for a subject to opt out of a
database and request that her identifying information be wiped from their
files.

Meanwhile, the sensitivity of information travelling through the Internet
makes e-mailing credit card numbers look trivial. A huge number of important
advances in health care could flow from putting everyone's medical records on
the Internet, at a significant cost to their security from prying eyes.[154] A variety of encryption methods have
been devised; the effective ones have generated government opposition because
of the specter of terrorists, drug dealers and other criminals encrypting their
scurrilous communications out of range of a phone tap.[155] Copyright management systems are unlikely to work
without something's keeping a record somehow, somewhere of what readers are
reading.[156] I don't much want anyone
generating and selling a record of what I've been reading lately. How about
you?

It seems obvious that these very difficult problems require serious solutions,
and that it will take a great deal of careful thought to devise them.
Copyright law can't solve the dilemma -- copyright can't even see the nature of
the competing interests. Under the copyright way of looking at the world, the
person who has the most compelling interest in the collection and dissemination
of the information is not an interested copyright party, and has no cognizable
stake. The proprietor of the data is the company that collected them and
claims the right to sell them; the consumers of the data claim access (and
sometimes claim the ability to exclude other users). The data are not original
to their subject and she has no claim to influence their disposition. Indeed,
it's not at all clear that copyright recognizes any important policy that would
support her insisting on seeing what data about her are being sold to the rest
of the world.

Copyright, in short, is a very bad tool for balancing privacy issues. It
deals with privacy claims only if, and only to the extent that, it can
assimilate privacy interests to authorship interests.[157] Most of the time, they aren't akin.

B. Copyright and equality

Copyright law has also avoided any serious concern with distributional issues.
There are exceptions to the public performance right in section 110 of the
statute that arguably incorporate distributional considerations. Schools,
churches, agricultural fairs and veterans' organizations get a break,[158] along with record stores[159] and small shops and restaurants.[160] The distributional policy decisions reflected in the
statute, however, derive not from copyright policy but from the political clout
gained from policy determinations made in other arenas.[161] Veterans' and fraternal organizations, for example,
obtained a Section 110 privilege in 1982, shortly after they discovered that
public performance of music might subject them to copyright liability. They
got their exemption because they insisted on it, and because they had the
influence with Congress to dissuade composers and music publishers from using
their own leverage to prevent its enactment so long as the privilege was
narrowly limited.[162] The privileges in
the statute for educational and library uses, similarly, emerged from a process
of negotiation among copyright owner representatives, library representatives
and educational representatives and reflect some combination of the parties'
respective bargaining power and the public appeal of a claim for increased free
use or enhanced control in view of the politics of the time.[163] The decisions about who is entitled to deal with
copyright on special terms, in other words, get made either because of sheer
bargaining power or because of exogenous political determinations made in
connection with unrelated issues.

That's how the legislative side of copyright policy gets made, as often as
not, and we're used to it. We tend to assume that the best approach to
perceived unfairness is to invite more people to the bargaining table.[164] That's surely preferable to continuing
to exclude them, but it won't do anything to solve distributional or equality
issues that stem from the outside, non-copyright world; it will just perpetuate
them. Of course, why should copyright law take on the thankless task of
addressing distributional issues? That certainly isn't its purpose.

Which is precisely my point. Copyright would address such issues badly,
because they are for the most part alien to copyright's rationale. The
copyright system leaves most distributional issues to the marketplace. If poor
schoolchildren need cheap books, some publisher will, we trust, perceive the
market and roll some undervalued out-of-print-but-still-in-copyright texts out
of retirement to reprint in cheap editions. If underfunded community theatres
need cheap plays to put on, there are some great bargains available from Samuel
French and Dramatists Play Service for small non-profit houses who choose to
produce less commercial plays. Besides, there's always Shakespeare.

I wouldn't suggest for a minute that copyright be revised to incorporate a
need-based sliding scale. We do need to recognize, though, that copyright law
has the luxury of not much worrying about such issues because other actors on
the information policy stage have made it their business to think about them,
and think hard. Telephone and television are different media today than they
might have been if the Federal Communications Commission hadn't spent a bunch
of time worrying about universal service, universal access, and the health of
the market in signals broadcast over the airways for free.[165] The Internet would be a different marketplace if the
NSF had not imposed restrictions for many years on commercial use.[166] It is completely understandable that
copyright owners and copyright lawyers would resist distorting copyright law by
increasing its sensitivity to equity issues. They may perceive (I think
correctly) that copyright law would respond poorly to such pressures. But,
while it may be wise to insist that copyright law keep its hands off issues of
equality of access and ability to pay, it would be foolish to insist that since
copyright doesn't address these issues, other legal institutions should permit
copyright's approach to these problems to go unchallenged. If copyright law
can't solve distributional inequities from within the four corners of copyright
doctrine, it should not be surprised when others endeavor to impose solutions
upon it. Questions of access and opportunity are part of what we have
information policymakers for.a
name="fnB165" href="#fn165">[167] There seems to be no good
reason why copyright's equity-blindness should prevail over the alternatives.

Conclusion

In evaluating proposals to make copyright rules the rules of the road
on the information superhighway, we have given too much attention to what I
would argue are the wrong questions. We've been relying on the maxim that
copyright and the First Amendment complement rather than conflict with each
other to relieve us of any need to consider what kind of information policy
might result if copyright rules really became the rules of the road. But the
harmony between the First Amendment and copyright doesn't inhere in their
essential nature; rather, it derives from accommodations and restrictions we
have built into copyright to enhance its role as an engine of free expression.
If we dispose of those limitations, or technology renders them irrelevant, then
nothing prevents copyright and the First Amendment from operating at cross
purposes.

Meanwhile the assumption that copyright rules accord with freedom of
expression policies has encouraged a strategy under which more copyright
protection (and more uncopyright[168]
protection) is always better. That reasoning, in turn, has obscured the
importance of limits on the scope and exercise of copyright rights. Proposals
to suggest copyright answers as the solutions for myriad questions posed by
digital technology for our information policy, in that environment, seemed
entirely appropriate. Objections to the agenda have been deflected into
increasingly bitter arguments about whether the proposals accorded with or
varied from long copyright tradition. The success of the American marketplace
of ideas, where copyright has coexisted almost comfortably with free speech law
for 200 years, has been tendered as evidence that a digital network governed by
strong copyright law principles would best promote the worldwide development
both of commerce and of free expression. That rhetoric, however, neglects the
greatly enhanced role that copyright rules are being asked to play. They
aren't up to it.

If we build the information law of the Internet, and its progeny, around the
copyright paradigm, we may be able to stretch and scrunch and bend copyright
law out of any recognizable shape to permit it to manage all of the interests
it has hitherto viewed as unimportant. If we can't, I think it's clear that
the information space it encourages will be one that few of us will like very much.

Footnotes:

[1] Professor of Law, Wayne State University.
[Email: litman@mindspring.com] I'd like to thank Julie Cohen, Pamela
Samuelson, Jamie Boyle, Mark Lemley and Jon Weinberg for their helpful comments
on drafts of this article. An earlier version of the article was presented at
the University of Dayton School of Law Scholarly Symposium on Copyright,
Owners' Rights and Users' Privileges on the Internet -- Implied Licenses,
Caching, Linking, Fair Use, and Sign-on Licenses, November 2, 1996, in Dayton,
Ohio.

[6] See February 8, 1996 House Hearing, supra
note 5, at __ (prepared statement of the Association of American Publishers);
Information Infrastructure Task Force, Intellectual Property and the National
Information Infrastructure: The Report of the Working Group on Intellectual
Property Rights 201-36 (1995) [hereinafter White Paper].

[11] White Paper, supra note 6, at 84. See
also id. at 82 ("it may be that technological means of tracking transactions
and licensing will lead to reduced application and scope of the fair use
doctrine"); February 8, 1996 House Hearing, supra note 5, at __ (statement of
Barbara A. Munder, Information Industry Association). For an articulate
critique of this reasoning, see James Boyle, Shamans, Software and Spleens:
Law and the Construction of the Information Society 135-39 (1996).

Much of the commentary about the wisdom or perils of importing copyright rules
into cyberspace unchanged focuses on fundamental and philosophical problems.
There are also more prosaic difficulties. The
access-plus-substantial-similarity test for copying, for example, seems likely
to be a casualty of the new era. Imagine a 21st Century Arnstein, who, like
all aspiring young songwriters everywhere, puts his creative output on his
World Wide Web homepage. (See Arnstein v. Porter, 154 F.2d 464 (2d Cir. 1946),
cert. denied, 330 U.S. 851 (1947)).

[13] Professor Neil Netanel has recently
published an ambitious article that takes the contrary view. According to
Professor Netanel, copyright law itself incorporates structural features that
enhance the democratic character of civil society. See Neil Netanel, Copyright
and a Democratic Civil Society, 106 Yale L.J. 283 (1996).

The received wisdom about the interaction between copyright and
the first amendment is that the two are not in conflict. Both advance "the right to
speak freely and the right to refrain from speaking at all." Thus, enjoining a
biographer from publishing a biography that quotes her subject is not a prior
restraint; prohibiting a data base from furnishing its customers with the page
numbers on which language in a legal opinion may be found raises no first
amendment implications; prohibiting a magazine from recounting a former
President's description of his official actions poses no problems for freedom
of the press.

The bromide that copyright and the first amendment do not conflict with each
other is said to derive from copyright law's own solicitude for ensuring the
free flow of ideas. That solicitude, it is said, is reflected in the principle
that copyright protects only expression and leaves ideas and information free
for use by others, and in copyright's fair use privilege. Together, the
idea/expression distinction and the fair use privilege are said to supply more
than sufficient protection for first amendment values within copyright law's
own internal structure.

So, here is the box that we've built for ourselves: Copyright owners have
frequently relied on the copyright protection accorded to the expression in
their works to try to restrict the use of the ideas and information that the
works express. In recent years, copyright owners have developed increasingly
clever strategies to advance those goals. In a society committed to freedom of
expression and its corollary of unfettered access to ideas and information,
that trend might be a cause for concern. The common wisdom, however, is that
no such concern is appropriate. We do not have to worry about the use of
copyright to impede the dissemination of ideas and information, it is said,
because fair use is there to privilege such uses. Nor need we worry about
shrinking the scope of the fair use privilege, because the idea/expression
distinction ensures that ideas and information will remain in the public
domain. Finally, we need not concern ourselves with the specter of copyright's
restricting anyone's opportunities to exercise her freedom of expression,
because the fair use privilege and the idea/expression distinction provide
adequate protection for such rights.

Moreover, freedom of expression "includes both the right to speak freely
and the right to refrain from speaking at all." . . . . Courts and
commentators have recognized that copyright . . .serve[s] this countervailing
first amendment value.

[31] Bruce Lehman, Commissioner of Patents,
chaired the White House Information Infrastructure Task Force Working Group on
Intellectual Property, and has played the leading role in peddling the Working
Group's recommendations to Congress, to the press, and to the members of the
World Intellectual Property Organization (WIPO).

[32] Two controversies led the Working Group
and the Register of Copyrights to encourage private, multi-party negotiation
rather than responding to the expressed concerns by modifying the White Paper's
proposals. The Working Group responded to suggestions that its preliminary
draft had paid far too little attention to fair use's place in the copyright
balance by convening an invitational conference on fair use, or "CONFU," where
representatives of publishers, libraries, and educational institutions could
discuss their differences, and then proceeded to finalize the IITF
recommendation that fair use not be addressed in any NII copyright legislation
while the CONFU process was still ongoing. Witnesses testifying before
Congress on the NII copyright bills expressed some frustration with the CONFU
meetings, and significant doubts over whether they would yield constructive
solutions. See , e.g., February 8, 1996 House Hearing, supra note 5, at __
(testimony of Jeanne Hurley Simon, U.S. National Commission on Libraries and
Information Science). The Working Group's recommendation that Internet and
online service providers should be held strictly liable for the infringing acts
of subscribers using their facilities inspired widespread concern. The IITF
and the Copyright Office encouraged informal, off-the record negotiations among
service providers and content providers, but urged Congress to move forward
while those talks continued. See, e.g., November 15, 1996 Joint Hearing, supra
note 2, at __.

[33] See Mark Voorhees, Better Luck Next Year:
The Death, Life and Death of the NII Bill, Information Law Alert, June 17, 1996
[Available on LEXIS, NEWS Library, CURNWS File].

[35] See, e.g., Pamela Samuelson, On Authors'
Rights in Cyberspace: Are New International Rules Needed?, 1 First Monday,
October 7, 1996, at
<http://www.firstmonday.dk/issues/issue4/samuelson/index.html>. The
proposed WIPO Treaty language is available online at World Intellectual
Property Organization, WIPO Diplomatic Conference on Certain Copyright and
Neighboring Rights Questions , URL:
<http://www.wipo.int/eng/diplconf/4dc_star.htm>, and at the U.S.
Copyright Office Home Page, URL:
<http://lcwb.loc.gov/copyright/wipo.html>, and has been reprinted in 43
J. Copyright. Soc'y 371 (1996).. A number of interests opposed to the
substance of the White Paper's recommendations have charged that the
Commisioner's international efforts have been an improper end-run around
Congress's lawmaking authority. See, e.g., Union for the Public Domain Home
Page, URL: < http://www.public-domain.org/>; Intrigue in Geneva: Who
Will Back Down on the Way to the Copyright Conference, 4 Information Law Alert
# 16, Oct. 11, 1996, at 1.

[43] See, e.g., Association of Research
Libraries, Copyright and NII Issues: Administration and Congressional
Activities, URL: <http://arl.cni.org/info/frn/copy/nii.html>; American
Library Association Washington Office, House Judiciary Committee Conducts
Hearings on NII Copyright Legislation, 5 ALAWON, March 6, 1996, at 1; Public
Hearing at Andrew Mellon Auditorium Before the Information Infrastructure Task
Force Working Group on Intellectual Property Rights, September 22, 1994 at
62-64 (testimony of Lucretia McClure for the Medical Library Association and
the Association of Academic Health Science Library Directors); Public Hearing
at University of Chicago Before the Information Infrastructure Task Force
Working Group on Intellectual Property Rights, September 14, 1994, at 5-9
(testimony of Edward J. Valauskas for the American Library Association);
September 16, 1994 IITF Hearing, supra note , at 32-36 (testimony of Gloria
Werner for the Association of Research Libraries); Association of Research
Libraries, the American Association of LawLibraries, the American Library
Association, the Association of Academic Health Sciences Library Directors, the
Medical Library Association, the Special Libraries Association and the Art
Libraries Society of North America, Fair Use in the Electronic Age: Serving
the Public Interest (Jan 18, 1995), available at URL:
<http://arl.cni.org/scomm/copyright/uses/html>; see also Digital Future
Coalition, Organization Biographies, URL: <
http://www.ari.net/dfc/member.htm> (listing library groups opposed to S.
1284 and H.R. 2441).

[49] See Copyrights, Clinton WIPO Treaty
Proposals Meet with Significant Opposition, 1996 BNA Daily Report for
Executives 183 (Sept. 20, 1996), in which the Commissioner of Patents justified
his insistence that the U.S. should move ahead on his proposals immediately:
"Consensus is a completely artificial notion. . . . We did not have consensus
about Bosnia, Somalia or Iraq . . . ."

Most of the proposals that have been introduced under the aegis of mere
clarification and extension, however, have been nothing of the sort: Rather,
they have been attempts to expand current stakeholders' preserves by annexing
territory that seems not yet claimed. The characterization of those proposals
as maintaining or restoring the preexisting balance is mere rhetorical
flourish.

If what we sought were merely to extend the preexisting balance,
doing so would be straightforward. I don't think that's what anyone actually
wants; rather, the status quo stands in here as a way to argue for what is
really an improvement in one's position, and as a fall-back, compromise
position to which one is willing to retreat. It seems likely that a critical
mass of stakeholders will ultimately find themselves agreeing that they could
live with something not too distant from the current balance. Something that
at least seems akin to the present balance, then, is more likely to emerge from
the political process than proposals that diverge further from current law. As
of this writing, interest groups affected by copyright from all points along
the spectrum are expending enormous reserves of energy to make the case that
the proposals they support are the ones that most nearly capture the spirit of
the status quo.

[59] Thus the White Paper characterizes calls
to permit even modest uncompensated access to digital works over the Internet
as attempts to tax copyright owners "--apart from all others--to facilitate the
legitimate goal of 'universal access.'" White Paper, supra note 6, at 84

[67] In December, 1996, the member nations of
the World Intellectual Property Organization [WIPO] convened a diplomatic
conference in Geneva to consider proposed treaties to supply international
answers to vexing copyright and neighboring rights questions served up by new
technology. Prior to the actual conference, a series of meetings among
national delegations and non-governmental organizations had produced three
draft

treaties, heavily influenced by the United States and embodying most of the
United States proposals. See Patent Office Opens International Copyright
Reform to Public Debate, 16 Information Law Alert #15, Oct. 25, 1996, at 10;
Lehman's Lament: Patent Commissioner Trying to Solve Liability Issue He Helped
Create at the Same Time He Faces Controversy Over International Negotiations, 4
Information Law Alert #15, Sept. 27, 1996, at 2; Intrigue in Geneva: Who Will
Back Down On the Way to the Copyright Conference, 4 Information Law Alert #16,
Oct. 11, 1996, at 1. After three weeks, the conference adopted two of the
three treaties in significantly changed form, and rescheduled consideration of
the remaining proposed treaty for the following year. See WIPO Press Release
No. 106, URL: <http://www.wipo.org/eng/diplconf/distrib/press106.htm>.
The language of all three proposed treaties is available online at the WIPO
World Wide Web site, URL: <http://www.wipo.int/eng/diplconf/index.htm>,
and reprinted in 43 J. Copyright Soc'y 372 (1996). Copies of documents
distributed during the diplomatic conference are available at URL:
<http://www.wipo.int/eng/diploconf/distrib/index.htm>. Copies of the two
treaties as finally adopted by the diplomatic conference can be found at URL:
<http://www.org/eng/diploconf/distrib/treaty01.html> (WIPO Copyright
Treaty); URL: <http://www.org/eng/diploconf/distrib/treaty02.html> (WIPO
Performances and Phonograms Treaty). Seth Greenstein's entertaining and
informative day-by-day account of the diplomatic conference negotiations is
posted at News From the WIPO Diplomatic Conference,
URL:<http://www.hrrc.org/wiponews.html>.

[76] See 17 U.S.C. SS 109. The first sale
doctrine is a judge-made limitation on the copyright owner's distribution
right. Its initial justification probably had more to do with judicial
distrust of attempts to restrict the alienability of tangible personal
property, but it has furthered important access concerns. See Jessica Litman,
Copyright and Technological Change, 68 Oregon L. Rev. 275, 338-40 (1989);
Litman, supra note 23, at 188-89, 208.

[77] Except for copies or phonorecords that
embody computer programs or sound recordings, see 17 U.S.C. SS 109(b), the
owner of any copy of a protected work is free to rent it commercially.

[93] See Proposed WIPO Treaty text, supra note
35, art. 7. See also id. art. 12. The language quoted in text failed to secure
the support of the majority of the delegates, and was struck from the final
text of the Treaty. See sources cited supra note 67. At the insistence of the
United States delegation, however, the members remaining at the very end of the
diplomatic conference adopted, by majority vote, an agreed statement intended
to substantiate claims that the Treaty language had been approved subject to
the understanding that transient RAM reproductions were already actionable
under the Berne Convention for the Protection of Literary and Artistic Works:

The reproduction right, as set out in Article 9 of the Berne Convention, and
the exceptions permitted thereunder, fully apply in the digital environment, in
particular to the use of works in digital form. It is understood that the
storage of a protected work in digital form in an electronic medium constitutes
a reproduction within the meaning of Article 9 of the Berne Convention.

Law Report, Jan. 24, 1997, at 105. The persuasiveness of the agreed statement
on that point is dubious, however. A number of delegations voting in favor of
the agreed statement did so on the explicit ground that the language quoted
above was ambigous and could be read to exclude transient reproductions. See
Seth Greenstein, News from WIPO-- December 20, 1996, URL:
<http://www.hrrc.org/wr_12-20.html>. In addition, a number of delegates
apparently voiced their understanding that a statement adopted by a majority of
delegates present, rather than by consensus, could not be an Agreed Statement
within the meaning of the Vienna Convention on the Interpretation of Treaty
Instruments. See id.

[95] The the wake of the rejection of some of
its more expansive proposals by the delegates at the WIPO diplomatic
conference, the Administartion was reported to be deliberating whether to
reintroduce those proposals as domestic legislation attached to, or distinct
from, the treaty ratification process. See Intelllectual Property 1996 Review
and 1997 Outlook, 53 Pat., Trademark & Copyright J. 283 (Feb. 6, 1997).

[97] The interpretation has been widely
criticized, see, e.g., sources cited supra notes 7 and 51, but has been
endorsed by the Register of Copyrights as a correct reading of the statute.
See Register of Copyrights of the U.S., Written Testimony on the NII Copyright
Protection Act (Feb. 15, 1996), URL:
<ftp://ftp.loc.gov/pub/copyright/cpypub/niistat.html>.

[103] See David Loundy, Getting Tough on
Piracy-- Without Targeting Pirates, Chicago Daily Law Bulletin, October 10,
1996 at p. 6, also available at URL:
<http://www.leepfrog.com/E-Law/CDLB/SPA_v_ISPs.html>; Didn't You Notice?
-- The Software Publishers' Internet Strategy Is Off to a Rocky Start, 4 Info.
L. Alert #18, Nov. 8, 1996, at 2, 3-4.

[107] See Information Infrastructure Task
Force, Intellectual Property and the National Information Infrastructure: A
Preliminary Draft of the Report of the Working Group on Intellectual Property
Rights 124 (1994):

It seems clear that the first sale model -- in which the copyright owner
parts company with a tangible copy -- should not apply with respect to
distribution by transmission, because under current applications of
technology, a transmission involves both the reproduction of the work and the
distribution of the reproduction. In the case of transmissions, the owner
of a particular copy of a work does not "dispose of the possession of
_that_ copy or phonorecord." A copy of the work remains with the first owner
and the recipient of the transmission receives a reproduction of the
work.

Therefore, to make clear that the first sale doctrine does not
apply to transmissions, the Working Group recommends that Section 109 of the
Copyright Act be amended to read as follows:

(a) (1) Notwithstanding the provisions of section 106(3), the owner of a
particular copy or phonorecord lawfully made under this title, or any person
authorized by such owner, is entitled, without the authority of the copyright
owner, to sell or otherwise dispose of the possession of that copy or
phonorecord.

(2) This subsection does not apply to the sale or other disposal of the
possession of that copy or phonorecord by transmission.

I think, initially, when we first had the initial Report, I think
there was a legitimate criticism of us that we had focused too much on the
commercial market. . . . But it was very quickly brought to our attention.
People said, well, you're focusing too much on that; you need to come back and
look at the users, and we did; and we did, and we made absolutely -- we made
substantive changes in our Report. We took out any references to changes in
the First Sale Doctrine, where people thought that was going too far.

[114] Without getting into any detail on
this point, let me assert only that the most nearly relevant decisional law on
distribution to the public is the hopelessly contradictory precedent on limited
vs. general publication under the 1909 Act.

[117] See World Intellectual Property
Organization Diplomatic Conference, Basic Proposal for the Substantive
Provisions of the Treaty on Intellectual Property in Respect of Databases,
available online at URL: <http://www.wipo.int/eng/diplconf/6dc_sta.htm>
(also available on the U.S. Copyright Office homepage at URL:
<http://lcweb.loc.gov/copyright/wipo6.html
>, and reprinted in 43 J.
Copyright Soc'y 516 (1996)). The U.S., with the support of the European Union,
proposed that this treaty be adopted at the WIPO diplomatic conference in
December, 1996. The proposal failed to garner international support, and the
diplomatic conference put off its consideration for another day. See WIPO
Press Release No. 106, URL:
<http://www.wipo.org/eng/diploconf/distrib/press106.htm>; WIPO Delegates
Agree on Two Treaties, 53 Pat. Trademark & Copyright J. (BNA) 145 (Jan. 2,
1997). The United States is currently insisting that another WIPO committee of
experts should be convened in the near future to pursue database protection.
See Clinton Administration is Undecided on Implementing Steps for WIPO
Treaties, 53 Pat., Trademark & Copyright J. (BNA) 241 (Jan. 23, 1997).
Commisioner Lehman has announced that the administration plans to hold public
hearings on the issues soon. See id.

[121] Consider this conference as one
example. Back in 1991, I attended a conference here with some of the same
participants. Bob Kreiss made the initial contacts by phone and issued the
formal invitation by mail; he advertised it by flyer. This time, he made the
initial contacts by posting a general query to relevant subject-specific
electronic mailing lists, made more personal contacts by e-mail, set up an
e-mail alias to permit an electronic debate, and, after a few phone calls,
issued the invitations and hashed out the details by e-mail. A confirming
letter followed via surface mail, but it only repeated the details we all knew,
and most of us who needed to reply to it used e-mail. He did send out flyers
(fewer, this time) but most of the recipients already knew about the conference
from electronic sources.

[126] Berne Convention for the Protection
of Literary and Artistic Works, Paris Text 1971, art. 9(2). It is this
article, along with the more specific provisions in article 10, which are
commonly cited as authorizing and circumscribing the U.S.'s fair use privilege.
See, e.g., Jane C. Ginsburg, Reproduction of Protected Works for University
Research or Teaching, 39 J. Copyright Soc'y of the USA 181 (1992).

[131] Occasionally, one hears the
argument
that a court can freely enjoined protected expression in a copyright
infringment case because the first amendment doesn't constrain the
courts from
granting remedies in lawsuits between private parties based on
invasions ofprivate interests. Copyright seems to me to be
indistinguishable from
defamation on this point, and defamation litigation is subject to a
host of
first amendment limitations. See, e.g., Milkovich v. Lorain Journal,
497 U.S.
1 (1990).

[135] There is a significant possibility
that something of the sort will happen as a result of litigation. When we ask
fair use to do too much, it sometimes gets stretched out of shape. That is one
of the lessons we could draw from the Sony case. See Sony v. Universal
Studios, 464 U.S. 417 (1984). The same lesson seems to stare out at us from
the decisions in Princeton University Press v. Michigan Document Services,
1996 U.S. App. LEXIS 29132 (6th Cir. 1996) (en banc), American Geophysical
Union v. Texaco, 60 F.3d 913 (2d Cir. 1995), and Sega v. Accolade, 977 F.2d
1510 (1993). Because fair use is drawn as a fact-specific, equitable rule of
reason, it an imperfect tool for evaluating entire realms of customary conduct.
That doesn't mean, however, that one can easily confine the analysis in
Sony (if one dislikes it) to the particular facts actually considered by
the Court. Rather it should serve as a caution to those who would prefer that
all new uses of copyright works be within the copyright owner's exclusive
control unless they qualify as fair use. See Litman, supra note , at
346-54.

[144] See generally Cohen, supra note 83, at
1032-34; University of San Diego Center for Public Interest Law Privacy Rights
Clearinghouse, Privacy in Cyberspace: Rules of the Road for the Information
Superhighway, URL: <http://www.acusd.edu/~prc/fs/fs18-cyb.html>.

[146] See e.g., Denise Caruso, Digital
Commerce: Maybe it's time to see the Internet as a what's-in-it-for-me
pipeline, New York Times, Oct. 21, 1996, at C5, col.1; Steven Levy, E-Money
(That's What I Want), WIRED 2.12, February, 1994, at ___.

[149] Although there are a few web-based
publications that charge subscription fees, see, e.g., The Wall Street Journal
Interactive Edition, Subscription Information, URL:
<http://interactive.wsj.com/subinfo.html>, most World Wide Web
publications that announced an intention to charge subscribers eventually,
including the New York Times, appear to have delayed their plans to impose
fees, perhaps indefinitely.

[150] The New York Times on the Web is
available free of charge to subscribers who register at the Times web site. In
order to view any part of the Times beyond the WWW front page, one must "sign
in" and accept a cookie.